PER/PELJ - Pioneer in peer-reviewed, open access online law publications
Author Isolde de Villiers
Affiliation University of the Western Cape, South Africa
Email idevilliers@uwc.ac.za
Date Submitted 27 September 2023
Date Revised 18 January 2024
Date Accepted 18 January 2024
Date Published 11 June 2024
Guest Editors Prof E du Plessis & Prof K van Marle
Journal Editor Prof C Rautenbach
How to cite this contribution
De Villiers I "Inhabiting the Ruins of the City of Tshwane" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16945
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16945
Abstract
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In the inner city of Tshwane stand the skeletons of four high |
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Keywords
Schubart Park; spatial justice; ruination; inhabitance; City of Tshwane; Justice Froneman.
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1 Introduction
Artefacts and ruins are remains of human-made objects and structures. In the west of the Tshwane city centre stand the soon-to-be-rejuvenated ruins of the Schubart Park Apartment Complex.
1
Isolde de Villiers. LLB LLM LLD (UP). Associate Professor, Department of Public Law and Jurisprudence, University of the Western Cape, South Africa. Email: idevilliers@uwc.ac.za. ORCiD: https://orcid.org/0000-0002-9384-6958 1 The Schubart Park case was central to my LLD thesis titled "xxx". My gratitude therefore to Karin van Marle for the supervision of my LLD and for creating this opportunity to reflect on the aftermath of the Schubart Park case. Thank you for valuable inputs from the participants in the workshop held in November 2021, and especially to Justice Froneman for his reflections during the workshop and his insight that this case illustrates how court judgments stand between the possible and the impossible. All errors remain my own. 2 Schubart Park Residents Association v City of Tshwane Metropolitan Municipality 2013 1 BCLR 68 (CC) (hereafter Schubart Park Residents Association) para 1.
short story We came to the Monument by Ivan Vladislavić as a way to formulate the possibility and impossibility of inhabiting it.
2 Schubart Park after the Constitutional Court judgement
On 9 October 2012 Justice Froneman delivered an order that upheld the appeal brought by the former inhabitants of Schubart Park, setting aside the orders of the High Court.
3
3 Schubart Park Residents Association para 53.
5. The applicants and the City of Tshwane Metropolitan Municipality must, through their representatives, engage meaningfully with each other in order to give effect to the declaratory order in paragraph 4 above. The engagement must occur with a view to reaching agreement on:
5.1. the identification of the residents who were in occupation of Schubart Park before the removals that started on 21 September 2011;
5.2. the date when the identified residents' occupation of Schubart Park will be restored;
This was certainly not intended as the last word on the matter. Because it was uncertain how long the process might take to restore the residents to their homes, he specifically tasked the high court with over-seeing the process:
The engagement part of the order issued in terms of section 38 should thus provide for meaningful engagement with the applicants at every stage of the re-occupation process. It is, however, uncertain how long that process will be and it is necessary for supervision by a court of the progress in that regard. Experience has shown that this should be done by the High Court.
4
4 Schubart Park Residents Association para 51, referring to Pheko v Ekurhuleni Metropolitan Municipality 2012 2 SA 598 (CC) para 50, and Occupiers of Saratoga Avenue v City of Johannesburg Metropolitan Municipality (CCT 12/12) [2012] ZACC 9 (24 May 2012).
Over the eleven years since the Constitutional Court judgment there have been reports of the former inhabitants of Schubart Park marching to Tshwane house to register their grievances.
5
5 Anon 2017 https://www.polity.org.za/article/schubert-park-residents-to-march-to-tshwane-municipality-2017-03-14.
the landlord, Singyung Investments, threatened them with eviction proceedings in 2021. The landlord in its affidavit, claimed that it had become difficult to control or identify the occupants because they changed regularly and that vandalism by the tenants was costing them a lot of money.
6
6 See Venter Pretoria News 3. 7 See Tshabalala 2020 https://www.r2k.org.za/2020/04/16/former-schubart-park-residents-are-not-happy-at-the-new-building/. 8 Berlinton 2023 https://www.tshwane.gov.za/?p=58739; Mahope Pretoria Record 2. 9 Du Toit 2009 Journal of Architectural and Planning Research 161-162. 10 Housing Company Tshwane 2020 https://www.govpage.co.za/housing-company-tshwane-hct-vacancies/housing-company-tshwane. 11 In 1984 the Human Science Research Council through a group of researchers compiled a report on the "place perspective" of Schubart Park. While the report portrays initial perceptions of the building style as positive, it hardly paints a picture of perfect conditions. See in general Schutte Social Interaction and Place Perspective.
Not only did the alternative accommodation provide problems for the former inhabitants over the course of the decade after the judgment, but it also came at a great cost to the City of Tshwane. A recent City of Tshwane Council report estimates the cost of rent and amenities between 15 and 24 million rand per annum.
12
12 City of Tshwane Report of the Special Mayoral Committee. My gratitude to reporter Rapula Moatshe, who furnished me with a copy of the report.
Whatever the state of the buildings at the time of the High Court orders in 2011, by the time of the Constitutional Court order a year later, the buildings, , were unsafe to inhabit because of the ongoing looting and continued to get more and more unsafe as time went on. This does not suggest that the ruination started with the Constitutional Court judgment in 2012, nor with the evictions in 2011. When did the ruination set in? Was it with its construction in the 1970s by the apartheid government for subsidised housing for public servants? Was it when the administration of Schubart Park fell to the Gauteng Housing Department after 1994, or was it when the complex came
under the full control of the Pretoria City Council in 1999? Or only when the City Council partially privatised some of their services, or when Housing Company Tshwane took over the housing complex in 2005? One lesson, as Edward Soja has it, "is clear: once spatial injustice is inscribed into the built environment, it is difficult to erase."
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13 Soja Seeking Spatial Justice 41.
3 Ruination
In the preface to her edited collection Imperial Debris – of Ruins and Ruination Ann Stoler shifts the focus from the noun ruin to "ruination" as an active, ongoing process that allocates imperial debris differentially.
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14 Stoler Imperial Debris ix. 15 Stoler refers to the Oxford Dictionary definition of the verb "ruin": "to inflict or bring great and irretrievable disaster upon, to destroy agency, to reduce to a state of poverty, to demoralize completely." Stoler Imperial Debris 9. 16 Stoler Imperial Debris 9. 17 Stoler Imperial Debris 10. 18 Stoler Imperial Debris 9.
In the Schubart Park case Justice Froneman draws attention to the relations that remain. His judgment shows very clearly how power relations and people's positions in society produce spaces. The City of Tshwane, like other cities, has been produced by this imagining of those who inhabit the inner city, and who have the right to the city. Justice Froneman reminds us that we are continuing to live in the ruins of apartheid when he emphasises the importance of "engagement without preconceptions about the worth and dignity of those participating in the engagement process."
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19 Schubart Park Residents Association para 44.
the inhabitants are viewed. As Justice Froneman observes, looking at the historical relations between the inhabitants and the City of Tshwane:
The City's tender was an inadequate basis for a proper order of engagement between the parties. It proceeded from a ‘top-down’ premise, namely that the City will determine when, for how long and ultimately whether at all, the applicants may return to Schubart Park. Unfortunately the history of the City's treatment of the residents of Schubart Park also shows that they appeared to regard them, generally, as ‘obnoxious social nuisances’,
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20 Here justice Froneman references Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC) para 41. 21 Schubart Park Residents Association para 50.
This is one of the most significant contributions of the judgement. It illustrates a continuation of the ruination shaped by a perception of who lives in Schubart Park. This is something that started as early as when construction of the housing complex commenced in 1976. The blocks were commissioned by the apartheid government's National Housing Board in order to provide white middleclass civil servants with accommodation in close proximity to the administrative capital. The four concrete blocks, built in Le Corbusier style, invoke the "city of rock" of Vladislavić's story.
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22 See the discussion of this short story below. 23 Butler 2019 Law & Crit.
4 Inhabiting the ruins of the possible
A key aspect in the Schubart Park case is that, in contrast to the High Court proceedings,
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24 The High Court granted three separate orders on 22 September, 23 September and 3 October 2011. The first two were dismissals of an application to immediately reinstate the residents in their homes, while the third ordered the implementation of the city's tender.
immediate challenge of being far from their places of work and their children’s schools.
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25 Van Marle and De Villiers 2013 AFLJ 140 n 62. 26 It remains a pity that the applicants could not present any new evidence on the condition of the buildings during the Constitutional Court case, because it was an appeal and new evidence was impermissible. Schubart Park Residents Association para 31: "The application for leave to introduce further evidence on the condition of the buildings suffers the same defect and must be dismissed." 27 Schubart Park Residents Association para 22: "The applicants sought an order in the High Court for restoration on the ground that they were despoiled of possession of their homes. This immediately added the dimension of section 26(3) of the Constitution to what would otherwise have been a normal spoliation application. It is the interplay between the ordinary requirements of spoliation and the demands of section 26(3) of the Constitution that is at issue here." 28 The High Court granted three orders on 22 and 23 September 2011, and 3 October 2011. Justice Froneman combines the September orders firstly in the dismissal of the application by the residents to immediately re-occupy their homes (dismissal order) and thereafter in the October order, which related to the tender of the City and the implementation thereof (tender implementation order). 29 Rikhotso v Northcliff Ceramics (Pty) Ltd 1997 1 SA 526 (WLD) 535A-B. 30 Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality 2007 6 SA 511 (SCA). 31 Fose v Minister of Safety and Security 1997 3 SA 786 (CC).
In an article tracing the fictionalised documentaries of Patrick Keiller,
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32 The trilogy of films discussed is London, Robinson in Space and Robinson in Ruins (Keiller 1994, 1997, 2010). See Butler 2019 Law & Crit 226. 33 Butler 2019 Law & Crit 225. 34 Butler 2019 Law & Crit 226. 35 Butler 2019 Law & Crit 239. He references Anthony Kinin: "'A bridge between imagination and reality must be built": Kinin A "Film and Spatial Critique in the Work of Patrick Keiller" 2009 Intermédialités 105-125. 36 Butler 2019 Law & Crit 239.
Butler shows that if, as Henri Lefebvre suggests, "the space which contains the realised preconditions of another life is the same one as prohibits what those preconditions make possible",
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37 Butler 2019 Law & Crit 239 with reference to Lefebvre Production of Space 189-190. 38 Lefebvre Production of Space 169-172.
Before producing effects in the material realm (tools and objects), before producing itself by drawing nourishment from that realm, and before reproducing itself by generating other bodies, each living body is space and has its space: it produces itself in space and it also produces that space. This is a truly remarkable relationship: the body with the energies at its disposal, the living body, creates or produces its own space; conversely, the laws of space, which is to say the laws of discrimination in space, also govern the living body and the deployment of its energies.
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39 Lefebvre Production of Space 170.
The idea of space being produced by bodies and the relations between them is significant because it links to the notions of spatial memory or spatial legacy. Asking the question about re-inhabiting Schubart Park also asks the question of how to inhabit the ruins of apartheid and colonialism in South
Africa. The spatial legacy that remains written on South African cityscapes requires that we materially inhabit them to make alternatives possible.
Justice Froneman's judgment in Schubart Park opens up a new understanding of Lefebvre's right to the city in the midst of ruination.
40
40 Runciman Mobilisation and Insurgent Citizenship 211 states that "At the heart of the Schubart Park struggle is an implicit debate over who has the right to the city." The concept of the right to the city, Lefebvre Writings on Cities 147-159, encompasses the right to appropriation and the right to participation. Lefebvre’s ideas echo in the slogan of the Schubart Park residents: "The City of Tshwane belongs to us and Schubart Park belongs to us." 41 First published in 1989 in Vladislavić Missing Persons and later also included in 2010 in Vladislavić Flashback Hotel.
The monument in the story is the Voortrekker Monument and the story is set in Pretoria. It is told from the perspective of two narrators. One is the daughter of a person called Steenkamp, the leader of a group of families who survived the siege of the city and now try to return, but find the city in ruins. The other is a statue, one that stands in a busy city square in the beginning, but later detaches itself from its pedestal and walks to the monument. The statue witnesses the changes in the city, the siege, the emptying out of the city and its destruction. This human statue in the post-apocalyptic Pretoria then reflects upon and merges itself with the friezes of the Voortrekker Monument. The statue moves through the city. It is first a statue in "the heart of it all" on "a pedestal at a busy intersection."
42
42 Perhaps referring to the statue of Paul Kruger in Church Square in the inner city? Vladislavić Flashback Hotel 67. 43 In the city centre on its pedestal, the statue's hands were frozen in a permanent gesture, the one open and the other shut – but, he tells us, "local historians, who wanted to give our city a history with footnotes, began to say that sometimes the hand that was open in the morning was shut at night. They said that I was some kind of miracle, or at least, that I contradicted myself." Vladislavić Flashback Hotel 70.
when the tide had gone out, the statue climbs down from its pedestal, stretches, and walks away.
I walked through the gutted city. I walked past the survivors, asleep in the ruins in their stainless-steel beds. Next to their incorruptible clocks … . And so I came at length to the Monument and it seemed like a place to stay.
44
44 Vladislavić Flashback Hotel 72.
The monument, like the rest of the city, is by the time the statue and the families arrive also in a dilapidated state. The statue then integrates himself into the outside wall of the Monument, becoming a sentinel, watching the city crumble and burn. The Monument endures. When he sees the approaching party of the Steenkamps, and realises that his early love, the daughter of Steenkamp, has returned to the city, he flees inside the Monument, moving from frieze to frieze in an attempt to find a place to hide. What the story manages to do is to make unfamiliar the city of Pretoria and its history, as connected to South African history. In doing so the inequalities of the past are highlighted. Published in 1989, We came to the Monument was written at a time when a different future for South Africa was very hard to imagine.
45
45 Mukherjee 2012 Journal of Postcolonial Writing 472. 46 "I lived in a city of rock. In the morning a tide of flesh and blood came in, it surged through the streets and crashed against the buildings, voices slid over one another like pebbles. In the evening, the tide receded, leaving the streets full of sand." Vladislavić Flashback Hotel 67.
It seems to me sometimes as if the earth stopped dead on its axis then. Like a globe blocked by a child's hand, and slowly began to revolve in the opposite direction. It gathers up the long thread of history, so carelessly unwound into space. When the people are asleep, the sand settles in the blood, the streets.
47
47 Vladislavić Flashback Hotel 77.
5 Conclusion
Previously, in my LLD thesis, I focussed on the build-up to the September 2011 evictions from Schubart Park, or, with others, on the everyday lived experiences of those in the high rises.
48
48 Van Marle and De Villiers 2013 AFLJ 129-145.
many of the evicted inhabitants were never housed in alternative accommodation. While the former residents of Schubart Park were trying to inhabit their new, alternative, and, intended to be interim homes, their former home was looted and broken down to such a degree that only the skeletal structures of the buildings remain. Looking at Schubart Park's remains in the Tshwane central business district from Stoler's ruination reminds us that we are still living in the ruins of apartheid. While this is important, I think it is one way of seeing the ruins and reading the judgment as an artefact in the ruins. I therefore turn to Butler's call for inhabiting the ruins of the possible, against the backdrop of his reading of Keiller's fictional documentaries. We came to the monument by Vladislavić opens up the same possibility for Tshwane that Butler's reading of Keiller's documentaries does. I illustrate this by reading the city as one of rock and sand, as fixed and in flux.
Reflecting on the body of jurisprudence on evictions, Justice Froneman notes that these provisions and cases assist us to appreciate in the first place that there is an interrelation between different rights and interests, and in the second place, that the tension between these interrelated rights and interests can best be resolved by engagement between the parties.
49
49 Schubart Park Residents Association para 44. 50 See for example Schubart Park Residents Association paras 35-36: "The initial order granted on 22 September 2011 was made under very difficult circumstances. It was made late at night after hearing oral evidence in relation to violent protest action that was finally brought under control only that same day. The factual assessment of immediate danger resulting from the fires to the lives of the residents, including elderly people and children, made by the Judge cannot be second-guessed in this Court. Even if it could, I would find it difficult to fault the immediate effect of the order. The important question, however, is whether that immediate order pronounced in a final way upon the lawfulness of the applicants' removal from their homes. If it did, it was legally incompetent, as explained earlier. But what emerges from the orders is not as clear-cut as that." 51 Schubart Park Residents Association para 38.
Where urgency dictates that immediate restoration will not be ordered it must be made clear, preferably by a declaratory order to that effect, that the refusal to order re-occupation does not purport to lay the foundation for a lawful eviction under section 26(3) of the Constitution. The order must be temporary only, and subject to revision by the court. Urgent orders of this kind will be rare: there is legislation providing for the timeous removal of people living in
unsafe buildings,
52
52 Section 12 of the National Building Regulations and Building Standards Act 103 of 1977; Regulation A15 in GN R2378 in GG 12780 of 12 October 1990. 53 Section 54 of the Disaster Management Act 57 of 2002. 54 Schubart Park Residents Association para 38 with reference to the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998.
Inhabiting the ruins of the possible in the context of the Schubart Park case imagines a different way in which the municipality can relate to the inhabitants of the city. In his judgment Justice Froneman was concerned that, until the oral argument before the Constitutional Court, the municipality tried to justify the removal of the inhabitants as lawful under the emergency and disaster legislation, "when it was clearly not the case".
55
55 Schubart Park Residents Association para 39.
Bibliography
Literature
Butler 2019 Law & Crit
Butler C "Inhabiting the Ruins of Neoliberalism: Space, Catastrophe and Utopia" 2019 Law & Crit 225-242
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Case law
Fose v Minister of Safety and Security 1997 3 SA 786 (CC)
Occupiers of Saratoga Avenue v City of Johannesburg Metropolitan Municipality (CCT 12/12) [2012] ZACC 9 (24 May 2012)
Pheko v Ekurhuleni Metropolitan Municipality 2012 2 SA 598 (CC)
Port Elizabeth Municipality v Various Occupiers 2005 1 SA 217 (CC)
Rikhotso v Northcliff Ceramics (Pty) Ltd 1997 1 SA 526 (WLD)
Schubart Park Residents Association v City of Tshwane Metropolitan Municipality 2013 1 BCLR 68 (CC)
Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality 2007 6 SA 511 (SCA)
Legislation
Constitution of the Republic of South Africa, 1996
Disaster Management Act 57 of 2002
National Building Regulations and Building Standards Act 103 of 1977
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
Government publications
GN R2378 in GG 12780 of 12 October 1990
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Anon 2017 https://www.polity.org.za/article/schubert-park-residents-to-march-to-tshwane-municipality-2017-03-14
Anonymous 2017 Schubert Park Residents to March to Tshwane Municipality https://www.polity.org.za/article/schubert-park-residents-to-march-to-tshwane-municipality-2017-03-14 accessed 10 August 2023
Berlinton 2023 https://www.tshwane.gov.za/?p=58739
Berlinton T 2023 City of Tshwane Unlocking Development through Strategic Property Releases https://www.tshwane.gov.za/?p=58739 accessed 10 August 2023
Housing Company Tshwane 2020 https://www.govpage.co.za/housing-company-tshwane-hct-vacancies/housing-company-tshwane
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Tshabalala 2020 https://www.r2k.org.za/2020/04/16/former-schubart-park-residents-are-not-happy-at-the-new-building/
Tshabalala N 2020 Former Schubart Park Residents are not Happy at the New Building! https://www.r2k.org.za/2020/04/16/former-schubart-park-residents-are-not-happy-at-the-new-building/ accessed 10 August 2023
List Of Abbreviations
AFLJ |
Australian Feminist Law Journal |
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Law & Crit |
Law and Critique |